Indigenous Territorial Rights in the Common Law

This chapter compares Indigenous territorial rights in the United States, Canada, Australia and New Zealand thematically under four headings: the sources, nature and content, proof, and protection of Indigenous rights. The first two are closely linked, as the nature and content of Indigenous rights are determined largely by their sources. Likewise, proof of Indigenous rights also depends on their sources. The protection they are accorded in any particular nation-state depends mainly on its constitution, with recent additional protection emerging in international law. The major premise of the chapter is that Indigenous rights are territorial, encompassing real property rights and governmental authority over a geographical space. The chapter examines these rights primarily from the perspectives of the dominant state legal systems in the four jurisdictions discussed. The author acknowledges nonetheless that Indigenous peoples have their own legal orders that govern these rights internally within their own territories. However, the focus of the analysis is on the external dimensions of Indigenous territorial rights, that is, the sources, nature, etc. of those rights vis-à-vis the rest of society, especially the settler governments